Jackson ex. dem. M'Clelan v. Mather

2 Cow. 584

• Court: New York Supreme Court
• Decided: May 15, 1824
• Status: Published

Opinion

Curia.

This case is swelled to 200 folios, by copying the patent, field book and deeds in hoec verba ; when 30 folios would have answered every purpose. It would have been enough to refer to these papers, without encumbering the case with the entire instruments. It was in season to object this on the taxation which is so far right.

One draft is sufficient for all the subpoenas in the cause, and so of the tickets. The taxation is right in this respect.

But the charge for certified copies should have been allowed. The certificate and seal of the Secretary is made evidence,

(a) and it is no longer necessary for him to attend Court on a subpoena duces tecum, or commit the papers of his office to a deputy, as formerly. The allowance comes in place of that which was formerly due to him as a witness, and is highly reasonable.

So also as to the papers for perpetuating testimony under the statute.(b) The 4th section of that act, it is .true, declares that the parties may take copies at their own expense, and would seem to imply that this should not be taxed; but as to evidence taken under that statute in a suit already pending, there is nothing to negative the allowance.

Rule. That the costs in this cause be re-taxed; but the taxation is confirmed. except as to $24 35, for copies of records from the Secretary’s office, and the sum of $9, for copies of testimony perpetuated, and that, as to those items, the same be allowed, on filing an affidavit that the said copies-were necessary on the trial, and that the plaintiff has paid for the same the amount charged.(c)

Stat. sess. 32, ch. 141, l.

Sess. 36, ch. 61, 1 R. L. 455; and vid. Jackson v. Hooker, 1 Cowen’s Rep. 586.

See Jackson v. Root, (18 John. 336,) acc.